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Homeschooling Legal FAQ (page 2)

— Homeschool Association of California
Updated on Dec 16, 2008

How do I find out what public and private programs are available?

To find out if your local district offers independent study, call them. These programs vary widely in resources, in documentation and curriculum requirements, in grade levels offered and in social and enrichment opportunities. The county office of education can tell you if neighboring districts have ISPs; to enroll in one of these, you would need to submit an interdistrict transfer form, obtained from your local district. To find out about charter and private programs, you will need to do research. The HSC website, www.hsc.org, lists some resources, and our HSC County Contacts will often know about programs offered in your area.

How do I establish a private school in my home?

A private school is established by:

  • Maintaining Attendance Records showing the days your school is in session and noting the days your students are absent.
  • Preparing a list of the courses of study offered based on the statutory requirements set forth in the Education Code.
  • Keeping a list of the faculty and their qualifications, which can include short resumes of the teachers, including their education and teaching experience;
  • Requiring each teacher and employee to have a Tuberculosis Certificate (http://www.dhs.ca.gov/publications/forms/pdf/pm286b.pdf). While there is some disagreement over whether a home based private school teacher teaching exclusively his or her children requires a Tuberculosis Certificate, we believe the better option is to obtain either the certificate or a waiver from your doctor.
  • Obtaining Criminal Record Summaries on each employee, unless all persons teaching are working exclusively with their own children.
  • Obtaining a copy of the students' Immunization Records or Waivers, available from their doctor.

After you have complied with the above requirements, you need to review the requirements for filing the private school affidavit with the CDE. See private_school_option.php#affidavit for a complete discussion of these filing requirements

What forms must I maintain in order to have a valid private school?

If you decide to operate a small private school, you must maintain the following records:

  • A copy of the private school affidavit at filed by your school. If you file online, make sure you have printed a copy prior to submitting it, and keep a copy of your signed confirmation copy. If you did not file because you started your school after October 15 in that same year, keep a copy of Section 33190 in your file to help you explain to anyone that the CDE believes that new schools formed after October 15 in any year should not file the affidavit that first year but file the following year.
  • Attendance Records
  • Courses of Study Offered
  • Faculty and their qualifications (you can write short resumes of the teachers, including their education and teaching experience)
  • Criminal Record Summaries, unless all persons teaching are working exclusively with their own children
  • Immunization Records or Waivers

Although you must keep these records, an attendance officer is only entitled to see a copy of the filed affidavit and a verification of attendance. A verification of attendance is simply a letter stating that your child is enrolled and attending your private school. You may wish to keep additional records such as the actual course work, grades, etc. These records are not legally required and should not be volunteered to any government agency. EC section 48321.5 (e). Further discussion of the information necessary in each of these records can be found at http://www.hsc.org/chaos/legal/.

Is the CDE opposed to small home-based private schools?

The CDE is not opposed to small home-based private schools. In the past, the CDE took the position that individuals could not transform their homes into a school by merely filing a private school affidavit, formerly known as an R-4. Even though the CDE is no longer taking a position on homeschooling using the private school option, it is still technically correct that filing the private school affidavit does not create a private school. You create the private school by following the education codes that apply to private schools. Once the private school is created, the school's administrator must file the affidavit between October 1 and October 15 of the school year.

It is the position of all of the major homeschool groups in California that any individual can establish a home-based private school, for any number of students, by following the requirements set out in the Education Code, and complying with the code’s requiremenst regarding the filing of a private school affidavit. HSC worked with one of the biggest and best law firms in the state to make sure we were analyzing this correctly, and they agree that the law clearly allows private individuals with no business motive to open very small private schools. In the past, the CDE took that position that individuals were not capable of meeting the requirements for establishing a private school, that individuals could only homeschool their children if they had a teaching credential, and that a school must have a business purpose. However, they are no longer taking this position. While there were two cases a number of years ago that might have supported these arguments, they probably would not do so any longer because of more recent United States Supreme Court holdings interpreting parents' fundamental rights in the care and control of their children. One case was decided based upon the wording of a provision of the Education Code that has since been changed, eliminating the problem (it is now perfectly clear that the state has no duty, but also no authority, to regulate private schools beyond ensuring that the affidavits are filed). In the other case, the family used a correspondence course that did not offer civics, one of the courses of study required to be offered at the time. This is obviously a simple thing to fix--make certain that your documentation reflects that your school offers all of the required courses of study (this doesn't mean your students must choose to study it, just that you must offer it).

While the CDE has changed its response to questions regarding the legality of homeschooling by establishing small home based private schools, this change in policy does not change the law. It is still necessary for private schools to follow the statutory requirements for establishing a private school in California.

Must a private school have more than 6 students?

No. The only reference to the number 6 has to do with a budgetary issue. The state is required to compile a directory of all private schools that have 6 or more students, and specifically is prohibited from using state funds to include smaller schools in that directory.

Does a private school have to be operated outside of a home and run as a business, including charging tuition?

The Education Code does not say that a private school has to be operated outside of a home or run as a business. It does not need to charge tuition.

What forms must I maintain in order to have a valid private school?

If you decide to operate a small private school, you must maintain the following records: A copy of the private school affidavit as filed by your school. If you file online, make sure you have printed a copy prior to submitting it, and keep a copy of your signed confirmation copy.

  • Attendance Records
  • Courses of Study offered
  • Faculty and their qualifications (you can write short resumes of the teachers, including their education and teaching experience)
  • Tuberculosis Certificate http://www.dhs.ca.gov/publications/forms/pdf/pm286b.pdf
  • Criminal Record Summaries, unless all persons teaching are working exclusively with their own children
  • Immunization Records or Waivers

Although you must keep these records, an attendance officer is entitled to see only a copy of the filed affidavit and a verification of attendance. A verification of attendance is simply a letter stating that your child is enrolled and attending your private school. You may wish to keep additional records such as the actual course work, grades, etc. These records are not legally required and should not be volunteered to any government agency. (Education Code section 48321.5 (e) ) Further discussion of the information necessary in each of these records can be found at http://www.hsc.org/chaos/legal/.

How do I get an affidavit?

Schools that filed last year for more than 6 students should have been contacted with their password for accessing their prior year's affidavit and updating it. New schools and those with fewer than five students will need to file a complete affidavit every year. The private school affidavit is available online at http://www.cde.ca.gov/sp/ps/rq/

For those without access to the Internet, a paper affidavit will be available. Schools should request a paper affidavit from the California Department of Education, Policy & Program Coordination 1430 N Street, Rm. 4309, Sacramento, CA 95814. While some people have expressed security concerns over online filing, and others have expressed concern over having their information in an easily searched database, we have not encountered any problems. We encourage people without personal access to the on-line form to go to friends, neighbors, or the local public library and fill out the on-line form.

When do I need to file an affidavit?

All private schools are required to file an affidavit each year between October 1 and October 15. (Education Code § 33190.) They should NOT be filed earlier; if you file earlier by mistake, file again in the correct time frame and say, when you send in the confirmation copy, that the new filing replaces the earlier one. Schools begun after October 15 but before the end of the regular school year should consider whether they should file an affidavit for their first year. See the information at private_school_option.php#affidavit. They should then file an affidavit each year between October 1 and October 15. Do not file in the summertime, even if you feel your school is in operation then.

Why is it important to file an affidavit?

The law provides an exemption from compulsory public school attendance for children who are being instructed in a private, full-time day school. (Education Code §§ 48200, 48220, 48222.) However, the exemption is not valid until the attendance supervisor of the public school district verifies that the private school has complied with the requirement to file the annual Private School Affidavit. (Education Code § 48222.)

By filing the affidavit, the owner or other head of the school certifies, under penalty of perjury, that the information on the form is true, that the records that are required to be maintained are being maintained at the address stated on the form, that the records are true and accurate, that criminal record summary information has been obtained pursuant to Education Code Section 44234, and that neither the owner nor the operator of the school has been convicted of any crimes that would prohibit his or her employment in a private school. (Education Code §§ 33190, 44237.)

If you are contacted by the attendance supervisor, you only need to show him or her the affidavit. Once the affidavit has been provided, the supervisor can verify that your private school complied with the filing requirement.

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